Hampton v. State

133 Ala. 180

• Court: Supreme Court of Alabama
• Decided: November 15, 1901
• Status: Published

Opinion

TYSON, J.

The complaint upon which defendant was tried is not before us. The copy of it in the transcript does not show clearly how the word “person” was -spelled, whether “peurson” or “purson.” But it is of no- consequence whether the one -or the -other, since it is simply a clerical or grammatical error. It is impossible to read the complaint -and be in doubt a® to the word intended or its import. The same may be said of the word pistol, if we -concede that it was written “pestol.” — Grant v. The State, 55 Ala. 207; Ward v. The State, 50 Ala. 120.

A motion in arrest of judgment, the ruling thereon and the reservation of a question as to s-u-ch ruling cannot be presented on appeal by -bill of exceptions, but must be shown by the record proper; and when presented -only by bill of -exceptions the ruling of the trial court thereon will not be reviewed.- — Taylor v. The State, 112 Ala. 69. Furthermore, such motion should be made and denied after the verdict and before sentence. It comes properly between the verdict and judgment pronouncing the sentence. — Sanders v. The State, 129 Ala. 69.

The overruling of the motion for a new trial is not reversible. — Bondurant v. The State, 125 Ala. 31.

There was no dispute as to the defendant’s having the pistol on Iris person. The matter of controversy was as ito whether it was concealed. On this point, the evidence was in conflict. It was error, therefore, to give the general affirmative charge, with hypothesis, for the State. If the pistol was not concealed the prisoner was not guilty 'and the fact of its concealment was a question for the jury.

There was no error committed in the exclusion of evidence, nor in the refusal of the two written charges requested by defendant. — Koch v. The State, 115 Ala. 99; Driggers v. The State, 123 Ala. 46.

Reversed and remanded.